Official Opinion 99-14

October 1, 1999

To:

Commissioner Georgia Department of Corrections

Re:

While misdemeanants may only be referred to probation detention centers upon initial sentencing pursuant to O.C.G.A. § 42-8-35.4, misdemeanants may also be referred to such facilities pursuant to probation revocation proceedings under O.C.G.A. § 42-8-34.1, and housed in detention centers by the Department of Corrections after a probation revocation proceeding pursuant to O.C.G.A. § 17-10-1(a)(3)(A).

You have requested my opinion as to the “correct interpretation of O.C.G.A. § 42-8-35.4,” which pertains to imposing confinement in a probation detention center as a condition of probation. You have inquired as to what limitations this Code Section places upon the Department in accepting probationers referred to detention centers for service of a portion of their sentence.

Official Code of Georgia Annotated § 42-8-35.4(a) provides in relevant part that:

In addition to any other terms and conditions of probation provided for in this article, the trial judge may require that a defendant convicted of a felony and sentenced to a period of not less than one year on probation or a defendant who has been previously sentenced to probation for a forcible misdemeanor as defined in [Georgia law] or a misdemeanor of a high and aggravated nature and has violated probation or other probation alternatives and is subsequently sentenced to a period of not less than one year on probation shall complete satisfactorily, as a condition of that probation, a program of confinement in a probation detention center.

(Emphasis added.)

Thus, pursuant to this Code Section, any person convicted of a felony may have imposed as a condition of their probation at their initial sentencing that they “complete satisfactorily . . . a program of confinement in a probation detention center.” Additionally, persons who have previously been sentenced to probation for either a “forcible misdemeanor” or a “misdemeanor of a high and aggravated nature,” have previously violated their probation (or “other probation alternatives”), and are subsequently sentenced to a period of probation of not less than one year may have the same requirement imposed as a condition of their probation at their sentencing.

In Johnson v. State, 267 Ga. 77 (1996), the Court examined the question of whether a person convicted of a misdemeanor could be sentenced to attend “boot camp” as a condition of probation under O.C.G.A. § 42-8-35.1. The Supreme Court determined that the language of that statute limited the imposition of such a condition of probation to felons in the initial sentencing proceeding, but acknowledged that “a trial court has the authority under certain circumstances to order confinement in a probation boot camp for a misdemeanor probationer whose sentence of probation is revoked.” Johnson, 267 Ga. at 79. Although interpreting slightly different statutory language, the same rationale applied by the Court in Johnson, appears applicable to O.C.G.A. § 42-8-35.4(a).

Similarly, the scenarios envisioned by O.C.G.A. § 42-8-35.4(a) should be contrasted with those presented by O.C.G.A. §§ 42-8-34.1 and 17-10-1(a)(3)(A). Official Code of Georgia Annotated § 42-8-34.1(b) provides that:

At any revocation hearing, upon proof that the defendant has violated any provision of probation or suspension other than by commission of a new felony offense, the court shall consider the use of alternatives to include community service, intensive probation, diversion centers, probation detention centers, special alternative incarceration, or any other alternative to confinement deemed appropriate by the court or as provided by the state or county. In the event the court determines that the defendant does not meet the criteria for said alternatives, the court may revoke the balance of probation or not more than two years in confinement, whichever is less.

(Emphasis added.) Thus, a misdemeanant may be sent to a probation detention center pursuant to a probation revocation proceeding under this Code Section regardless of whether he or she meets the criteria set forth in O.C.G.A. § 42-8-35.4.

Likewise, O.C.G.A. § 17-10-1(a)(3)(A) provides that:

Any part of a sentence of probation revoked for a violation other than a subsequent commission of any felony, or a misdemeanor offense involving physical violence resulting in bodily injury to an innocent victim which in the opinion of the trial court constitutes a danger to the community or a serious infraction occurring while the defendant is assigned to an alternative probation confinement facility shall be served in a probation detention center, probation boot camp, diversion center, weekend lock up, or confinement in a local jail or detention facility, or other community correctional alternatives available to the court or provided by the Department of Corrections.

(Emphasis added.) Thus, misdemeanor probationers whose probation is revoked and do not fall into one of the enumerated categories must be placed by the Department into one of the above-referenced “community correctional alternatives.”

It is clear, therefore, that while misdemeanants may only be referred to probation detention centers upon initial sentencing pursuant to O.C.G.A. § 42-8-35.4, misdemeanants may also be referred to such facilities pursuant to probation revocation proceedings under O.C.G.A. § 42-8-34.1, and housed in detention centers by the Department of Corrections after a probation revocation proceeding pursuant to O.C.G.A. § 17-10-1(a)(3)(A).

Prepared by:

CHRISTOPHER S. BRASHER
Senior Assistant Attorney General

1 Note that persons convicted of a third offense of shoplifting “shall be punished by imprisonment for not less than 30 days or confinement in a ‘special alternative incarceration-probation boot camp,’ probation detention center, diversion center, or other community correctional facility of the Department of Corrections for a period of 120 days.” O.C.G.A. § 16-8-14(b)(1)(B) (emphasis added). 2 See footnote 1, above. 3 Note also that O.C.G.A. § 17-10-4(a) does not impact this conclusion because that Code Section merely limits where a person convicted of a misdemeanor of a high and aggravated nature may be initially sentenced. Misdemeanants may be sent to one of the “community correctional alternatives” as part of a modification or revocation of their probation.